John Bracken v OzForex Limited
[2022] FWCFB 95
•9 JUNE 2022
| [2022] FWCFB 95 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
John Bracken
v
OzForex Limited
(C2022/2777)
| VICE PRESIDENT HATCHER | SYDNEY, 9 JUNE 2022 |
Appeal against decision [2022] FWC 879 of Commissioner P Ryan at Sydney on 14 April 2022 in matter number U2021/4619
Mr John Bracken has applied, pursuant to s 604 of the Fair Work Act 2009 (FW Act), for permission to appeal a decision made by Commissioner P Ryan on 14 April 2022[1] to dismiss Mr Bracken’s application for an unfair dismissal remedy against OzForex Limited (OzForex). The Commissioner published his reasons in a separate, confidential decision (reasons) on the same day.
Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time as may be allowed by the Commission on application by the appellant. The Commission’s records show that Mr Bracken attempted to email his notice of appeal to the Commission at 11.59.55pm on 5 May 2022 (the 21st day after the date the decision under appeal was delivered), but entered an incorrect email address. He successfully sent the email to the Commission on 12.01am on 6 May 2022. Due to Mr Bracken’s error, the appeal is by the smallest of margins out of time. OzForex, properly, does not oppose Mr Bracken being granted the requisite extension of time. In the circumstances, we consider it appropriate to extend time for Mr Bracken to file his appeal until 6 May 2022.
Mr Bracken’s grounds of appeal, as stated in his further amended notice of appeal filed on 13 May 2022, are as follows:
“1.In the hearing that is the subject of this appeal, the applicant was not afforded the Common Law right of Procedural Fairness.
I.The respondent was permitted to be represented by a solicitor, even though the respondent was quite capable of representing itself, given it was a large multinational company with unlimited resources, including an in-house legal team. The representation was then upgraded to a Barrister on the day of the hearing without prior notice.
II.The respondent submitted a large and lengthy document, being the AML/CTF Program, Parts A & B on the morning the hearing was to start. The applicant was not given a fair amount of time to review the document or formulate analytical questions for the witnesses, thereby causing prejudice.
III.During the oral hearing, the applicant was not afforded the opportunity to put forward any oral submissions even though new and lengthy evidence was submitted the day before.
IV.The Commissioner did not see fit to question the applicant on any matter(s) that the Commissioner considered were “bare assertions” made by the applicant.
V.It is possible that the Commissioner may have been biased in favour of the respondent, given all orders made were beneficial to that party &
VI.The reasons for deciding the dismissal was valid and not harsh, unjust or unreasonable were/appeared to be identical to the submissions put forth by the respondent.
2.The Commissioner made significant errors of law, that were not in keeping or consistent with previous interpretations by other Commissioners.
3.The Commissioner made significant errors of fact, that contributed to erroneous findings constituting a miscarriage of justice.”
Mr Bracken filed written submissions in support of his application for permission to appeal on 23 May 2022, and made further oral submissions before us in a hearing on 7 June 2022. OzForex filed written submissions in response on 3 June 2022 and, in addition, responded to a question from the bench at the hearing with a written note filed the same day.
An appeal against a decision to dismiss an unfair dismissal remedy application under s 587 of the FW Act is one to which s 400(1) of the FW Act applies. Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[2] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[4] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[5] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[6]
In respect to Mr Bracken’s first ground of appeal, which alleges a denial of procedural fairness in a number of instances, we are not satisfied that it is sufficiently arguable to attract the public interest such as to permit the grant of permission. Dealing with these issues in the numerical order found in the appeal ground:
(1)Mr Bracken has not identified any practical procedural or substantive unfairness or prejudice as having arisen from the Commissioner’s grant of permission for legal representation to OzForex.
(2)In respect of the AML/CTF document which was provided to Mr Bracken on the morning of the hearing before the Commissioner on 8 September 2021, Mr Bracken requested an adjournment in order to permit him to read the document before the proceedings commenced. This was granted by the Commissioner. When the proceedings resumed, Mr Bracken confirmed that he had reviewed the document (which, in any event, he had seen before during his employment). Beyond the level of generalisation, Mr Bracken has not identified any subsequent inability to properly deal with the document in the proceedings.
(3)Mr Bracken did not identify when he was denied the opportunity to make oral submissions in respect of new evidence. On our review of the record of the proceedings, this contention is without substance.
(4)Mr Bracken did not expand upon this aspect of his first appeal ground in his submissions, and on its face it does not identify any proper basis to allege a denial of procedural fairness.
(5)An allegation of bias (actual or apprehended) cannot be sustained simply on the basis that the Commissioner made orders in favour of one party.
(6)That the Commissioner accepted the submissions of one party is not an indicator of any denial of procedural fairness.
In respect of his second appeal ground, Mr Bracken did not identify what the alleged “significant errors of law, that were not in keeping or consistent with previous interpretations by other Commissioners” were. Consequently, no arguable case of error that would attract the public interest is disclosed.
As to his third appeal ground, Mr Bracken at the hearing contended that the conclusion in paragraph [135] of the Commissioner’s reasons that he had committed “a substantial and wilful breach of the Respondent’s policies and procedures” as to a specific matter “justifying the termination of his employment” was based on a significant error of fact, namely that there was no policy or procedure about that specific matter in existence (as he had contended below, which contention is recorded at paragraph [108]). It was this contention to which OzForex responded in its further note filed on 7 June 2022. Having regard to Mr Bracken’s submissions and the content of OzForex’s note, we consider that it is at least reasonably arguable that the reasons were the subject of an error of fact as contended by Mr Bracken. Further, we consider that it is also reasonably arguable that any such error was significant in nature for the purpose of s 400(2) of the FW Act having regard to the apparent weight placed on the conclusion in paragraph [135] in the Commissioner’s consideration under s 387(a) of the FW Act as to whether there was a valid reason for the dismissal.
Mr Bracken also contended in his submissions that the Commissioner erroneously used the discretionary power in s 590 of the FW Act to order OzForex to provide further evidence after the conclusion of its evidentiary case, and in failing to provide adequate reasons for his decision. We consider these contentions to be entirely lacking in merit.
In respect of the third appeal ground, we consider for the reasons stated in paragraph [8] above that it would be in the public interest to grant permission to appeal, since it raises the possibility that the decision manifests an injustice insofar as it is based on a finding that there was a valid reason for Mr Bracken’s dismissal. We do not consider that it would be in the public interest for permission to appeal to be granted in respect Mr Bracken’s other appeal grounds and contentions because they are not reasonably arguable.
We order as follows:
(1) Time for the appellant to file his appeal is extended until 6 May 2022.
(2)Permission to appeal is granted with respect to appeal ground 3 in the appellant’s further amended notice of appeal filed on 13 May 2022 only.
(3) Permission to appeal is otherwise refused.
Directions and a notice of listing for the hearing of the appeal shall accompany this decision.
VICE PRESIDENT
Appearances:
Mr J Bracken on his own behalf with Ms M Morkos
Mr D Stewart (of counsel) for the respondent
Hearing details:
2022
Sydney and Melbourne (via video-link):
7 June.
[1] [2022] FWC 879
[2] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[3] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[5] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[6] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
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